MICHAEL LEE ROSS

26 June 2014

In delivering the Supreme Court of Canada's judgment in the Roger William case, Chief Justice Beverley McLachlin shifted the Court's focus away from its earlier statements in Haida Nation assuring the Province that the right of Aboriginal groups to be consulted about projects potentially affecting their claimed Aboriginal title lands did not give them a veto over such projects and in the direction of the international law standard of consulting to obtain their free, prior and informed consent. She even went so far as to remark on the advisability - for the Province, Canada, and even project proponents - of "obtaining the consent of the interested Aboriginal group" where Aboriginal title is potentially at stake.

Here are her two key statements explaining the aforesaid advisability:

92 Once
title is established, it may be necessary for the Crown to reassess prior
conduct in light of the new reality in order to faithfully discharge its
fiduciary duty to the title-holding group going forward. For example, if the
Crown begins a project without consent prior to Aboriginal title being
established, it may be required to cancel the project upon establishment of the
title if continuation of the project would be unjustifiably infringing.
Similarly, if legislation was validly enacted before title was established,
such legislation may be rendered inapplicable going forward to the extent that
it unjustifiably infringes Aboriginal title.

...

97 I
add this. Governments and individuals proposing to use or exploit land, whether
before or after a declaration of Aboriginal title, can avoid a charge of
infringement or failure to adequately consult by obtaining the consent of the
interested Aboriginal group.

Although of less moment than the decision to grant the Tsilhqot'in a declaration of Aboriginal title, the Chief Justice's and hence the Court's openness to criticism and persuasion to move towards the international law standard of free, prior and informed consent should not go unacknowledged or unappreciated.

Whatever our reservations about the capacity of the common law to do justice to Aboriginal peoples, we should not lay blame on the common law for the British Columbia Court of Appeal's decision in the Roger William case. Although the Court of Appeal invoked the common law in advancing an approach to Aboriginal title that every First Nation in Canada subsequently found abhorrent, in reality it relied on considerations extrinsic to the common law to justify its desired conclusions. We won't know until later this morning, when the Supreme Court of Canada releases its reasons for decision in the William case, whether the Court has seen through the Court of Appeal's talk of the common law. At stake is not only whether Aboriginal title has any remaining value in the struggle for the reconciliation of Aboriginal and non-Aboriginal peoples in Canada but also whether the reconciliation achieved may be genuine and just.

23 January 2014

Missed by most of those who had been keeping track of the
Enbridge Northern Gateway Joint Review Panel process was the Panel’s unstated
assumption that the opposition of those First Nations whose distinctive ways of
life, health, social institutions, and economies remain intertwined with their
marine environments, and who thus see Enbridge’s project, especially its
introduction of bitumen tankers into their waters, as a serious threat to their
futures, is unreasonable. The Panel’s unstated correlative was that because, in its
final estimation, Enbridge had “the science” on its side, its position was the
benchmark of reasonableness.

But what is reasonable? I don’t pose the question as a
skeptic, only to make a few common sense observations and draw some direct
conclusions.

Except when they journey into the further reaches of their
disciplines, mathematicians and physicists don’t often pose the question, What
is reasonable? They – and we – are well past the stage, if it ever existed,
where we wonder whether it is reasonable to say that “four” is the result of
adding two to two.

Similarly, composers don’t tend to ask whether it is
reasonable (or not) to use a diminished chord in a composition. The same holds
for painters and other artists working with their own media.

The question is most suited to areas of practical concern;
politics, law, and, most fundamentally, our everyday ethical/moral
deliberations.

There is a reason for this. While science may go some way in telling us the probabilities of minor, middling and major oil tanker spills in British Columbia's coastal waters, it has nothing determinative to offer on whether we should or should not take the risk. Science can't tell us - and I'm not implying that conscientious scientists would tell us - that we should accept the risk of serious adverse effects on our coastal marine environment, and the communities who depend on it, where it more likely than not won't materialize. (Note that this is a legal not a scientific standard of proof.) Science can't even tell us whether we should accept such risk where the probabilities are lower. Answers to these questions come from the sphere of practical reason; ethics, politics, law, etc.Obviously, we should and do rely on science in our efforts to get to the truth about things like the probabilities of oil tanker spills. But to believe that science can tell us whether the risks are reasonable and thus worth taking is puerile, at best. In such circumstances, the calming invocation of the phrase "sound science", in an effort to claim the mantel of reasonableness in the public's imagination, is misdirection.

As the Enbridge Northern Gateway Project Panel would have it, “the
science” settled what’s reasonable. In consequence, it tacitly held that those
coastal (and other) First Nations who looked at the project, deliberated about
it in terms of their own political, legal and ethical traditions, and concluded
that it poses an existential and therefore unacceptable threat to their
societies and cultures were unreasonable. It was on this basis, fundamentally,
that the Panel downplayed and thus dismissed the evidence that these First
Nations provided on not only the likelihood but also the significance of the
adverse effects that Enbridge’s project would visit upon them.

There are several choice but just words one might use to describe
what the Panel did. I’ll leave mine unstated.

05 April 2012

Anyone
relying on the recent words and deeds of Prime Minister Stephen Harper, Natural
Resources Minister Joe Oliver, and other federal officials might be excused for
wrongly assuming that the shipment of Alberta oil sands crude to Canada’s west
coast and thence to Asian markets depends entirely on the approval,
construction and operation of Enbridge’s Northern Gateway Pipelines. With noteworthy consistency, their public advocacy
of Enbridge’s proposed pipeline system avoids reference to another already in
existence.

Kinder
Morgan, one of Enbridge’s chief competitors, owns and operates the 1150 km long
Trans Mountain Pipeline system, which moves crude oil and refined products from
Edmonton, Alberta to the Lower Mainland of British Columbia and, by means of its
branch Puget Sound Pipeline system, to northwestern Washington State. Trans
Mountain has been in operation since the early 1950s. In recent years, 10 per
cent of the tankers visiting Trans Mountain’s Port of Vancouver terminal have
been bound for Asia.

But the
Prime Minister and his federal colleagues portray Enbridge’s Northern Gateway project
as vital not only to diversifying Canada’s crude oil market but also to accommodating
Alberta’s accelerating oil sands production. As they see it, substantially
increasing oil sands production is essential to securing Canada’s long-term
economic growth and prosperity. Enbridge’s project fits into their grand scheme
by adding significantly to the North American pipeline capacity required to
move higher volumes of Alberta bitumen to market, and in particular to Asia. Anyone
crediting their recent words and deeds would be hard pressed to conclude
anything other than that Enbridge’s project is a national imperative.

No such
treatment is accorded Kinder Morgan, despite actively pursuing a proposal to expand
the capacity of its Trans Mountain system. Its current capacity to carry crude oil and

12 January 2012

A recent question for debate is whether Prime Minister Stephen
Harper and his government have overstepped their authority in their promotion
of Enbridge’s proposed Northern Gateway Pipeline while the project is before
the Joint Review Panel. The case for saying they have is debatable. Although reasonable people
with reasonable arguments say they have (here), other reasonable people with reasonable arguments say they haven’t (here).

But there is a similar question which should be raised and
discussed, namely, whether the Prime Minister and his government have, in promoting
Enbridge’s pipeline, offended the honour of the Crown with respect to the
constitutional duties owed to Aboriginal peoples, who would have no choice but to
live with risks of Enbridge’s pipeline and the associated oil tankers
plying the waters of Douglas Channel and beyond and, as the risks materialize, to endure them as best they can.

In the process of coming to an ultimate decision on whether
to approve Enbridge’s project, the federal government has a duty to consult
each of the First Nations potentially adversely affected by it. The government’s
duty includes a duty to consult in good faith, which in turn includes a duty to
proceed with an open mind, a mind not closed to the possibility that the honour
of the Crown and, by implication, Canada’s constitution may require it
to reject Enbridge’s proposal.

Hence the question: By their promotion of Enbridge’s
project, have the Prime Minister and his government offended the honour of the
Crown vis-à-vis Aboriginal peoples? From
a legal perspective, the case for saying they have is far less debatable than the case
for saying they have overstepped their authority in regard to the Joint Review
Panel process.

Article 3 of the new law sets forth the aim or objective of consultation:

The objective of the consultation is to reach agreement or
consent between the State and the indigenous or native peoples regarding legislative
or administrative measures that directly affect them, through intercultural
dialogue that guarantees their inclusion in the State's decision-making processes and
the adoption of measures respectful of their collective rights.

Set against Article 3 is Article 15, which among other
things says:

The final decision on the approval of the legislative or
administrative measure belongs to the competent state agency. … If no agreement
is reached, it is the responsibility of the state agencies to take all the
measures that are then necessary to guarantee the collective rights of
the indigenous or native peoples.

Some early commentators have read Article 15 as
contradicting Article 3 and so either have gone on to assert that Article 15 runs afoul
of international law on the right of indigenous peoples to free, prior, and
informed consent and then suggest that it should be downplayed in favour of
Article 3 or - wishing to avoid drawing attention to it - have noted Article 3 without
mentioning Article 15.

Likely unawares, these commentators have inflated the
international legal principle of free, prior, and informed consent into an
indigenous veto or its like and thus have fallen into a trap similar to one
fallen into earlier by the Chief Justice of Canada, albeit to opposite
effect. As I note in my previous post on
Consultation and Free, Prior, and Informed Consent, drawing from the analysis
of James Anaya, United Nations Special Rapporteur on the Situation of Human
Rights and Fundamental Freedoms of Indigenous People, there is no contradiction
between saying, on the one hand, that the state should seek and even in some
cases must obtain the free, prior, and informed consent of indigenous peoples
before deciding to go ahead with plans and projects inimical to their rights and,
on the other, that the decision is the state’s to make, even if sometimes it
must, normatively speaking, result in a “No”.

10 September 2011

The McLachlin Court's position on the right of Aboriginal peoples to participate in the Canadian state's decision making processes where those decisions may adversely affect their rights is a step back from the position staked out by the preceding Lamer Court. In his reasons for decision in Delgamuukw (1997), then Chief Justice Antonio Lamer, speaking of what might be required to constitutionally justify state infringement of Aboriginal title, wrote:

... aboriginal title encompasses within it a right to choose to what ends a piece of land can be put. ... This aspect of aboriginal title suggests that the fiduciary relationship between the Crown and aboriginal peoples may be satisfied by the involvement of aboriginal peoples in decisions taken with respect to their lands. There is always a duty of consultation. Whether the aboriginal group has been consulted is relevant to determining whether the infringement of aboriginal title is justified, in the same way that the Crown’s failure to consult an aboriginal group with respect to the terms by which reserve land is leased may breach its fiduciary duty at common law.... The nature and scope of the duty of consultation will vary with the circumstances. In occasional cases, when the breach is less serious or relatively minor, it will be no more than a duty to discuss important decisions that will be taken with respect to lands held pursuant to aboriginal title. Of course, even in these rare cases when the minimum acceptable standard is consultation, this consultation must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue. In most cases, it will be significantly deeper than mere consultation. Some cases may even require the full consent of an aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to aboriginal lands. (para. 168; italics mine)

There are three things I want to note about this passage here. First, Aboriginal title encompasses the right to exclusive use and occupation of the land (para. 166). It also encompasses the right to choose to what to uses the land can be put (para. 166). The latter encompassed right flows from the first. Thus, Aboriginal title encompasses the right to exclusively choose whether and how to use the land. Second, the right to consultation in the face of state infringement of title, and along with it the principle that in certain circumstances the state may not proceed without indigenous consent, are aimed at avoiding encroaching unnecessarily not only on land subject to Aboriginal title but also on the right to exclusively decide whether and how the land is to be used. Third, Justice McLachlin (as she then was), who had been on the Supreme Court of Canada for a decade when the reasons for decision in Delgamuukw were released, there stated - without elaborating on - her concurrence with Chief Justice Lamer.

On 7 January 2000, she was sworn in as Chief Justice of the Supreme Court of Canada.

Nearly seven years after Delgamuukw, after quoting from the aforementioned passage three times in her reasons for judgment in Haida Nation (2004), Chief Justice Beverley McLachlin wrote:

Links

First Nations Sacred Sites in Canada's Courts

UBC Press, 2005

"I know of no other book that even attempts to do what Michael Ross's very careful and intelligent legal analysis accomplishes here. Ross's arguments are logically presented and clear, and he makes an important contribution to the literature."

– Peter Russell, Professor Emeritus in Political Science, University of Toronto

*First Nations Sacred Sites in Canada's Courts was shortlisted for the Third Annual George Ryga Award for Social Awareness in Literature (2005).

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About the Book

The sacred sites of indigenous peoples are under increasing threat worldwide as a result of state appropriation of control over ancestral territories, coupled with insatiable demands on lands, waters, and natural resources. Yet because they spiritually anchor indigenous peoples’ relationship with the land, they are crucial to these peoples’ existence, survival, and well-being. Thus, threats to sacred sites are effectively threats to indigenous peoples themselves.

In recent decades, First Nations peoples of Canada, like other indigenous peoples, have faced hard choices. Sometimes, they have chosen to grieve in private over the desecration and even destruction of their sacred sites. At other times, they have mounted public protests, ranging from public information campaigns to on-the-ground resistance. Of late, they have also taken their fight to the courts.

First Nations Sacred Sites in Canada’s Courts is the first work to examine how the courts have responded. Informed by elements of a general theory of sacred sites and supported by a thorough analysis of nearly a dozen cases, the book demonstrates not merely that the courts have failed to treat First Nations sacred sites fairly but also why they have failed to do so. The book does not end on a wholly critical note, however, but suggests practical ways in which courts can improve their handling of the issues. Finally, it shows that Canada too has something profound at stake in the struggle of First Nations peoples for their sacred sites.